Murphy v. Greeley , 146 Mass. 196 ( 1888 )

Knowlton, J.

To determine whether the defendant neglected his duty towards the plaintiff’s intestate, we must first inquire what were the relations out of which his duty grew. He had a contract with the owner to do all the carpenter-work upon a large brick building five stories high, then in process of erection. Its outer walls and inside brick partitions were all completed, and the openings for windows were filled with sashes of cotton cloth. The flooring on the first floor had been laid, but the wooden partitions there had not been erected, and the carpen ter-work in general was not far advanced. The plaintiff’s intestate, James Sinnott, made a contract with him to do the furring of a room upon the first floor, at a certain price per square yard. The only duty which he owed Sinnott grew out of this contract. The passageway to the place where the work was to be done extended from the main entrance through the building a considerable distance to the room to be furred, and there was evidence that near the centre of the building the locality about the passageway was at times very dark; that at the time of the accident it was so dark that one could not see his hand before his face; and that Sinnott, having stopped work at about five o’clock on account of the darkness, it being winter, attempted to go out through this passageway, mistook his course, went through an opening in the wall which led to a room in the floor of which was an open space for a stairway to the basement, fell through this open space, and was injured. He testified that there was no other way than through this passageway to get to the room where the work was to be done, and it is to be presumed that he passed through it when he was shown the room at the time he took his contract. He entered by it in the morning on each of the two days that he worked. He was fifty-five years of age, a carpenter by trade, in full possession of all his faculties, and he had worked in the construction of buildings for more than twenty years.

In connection with such a contract, made under such circumstances, the law implied no contract on the part of the defendant, and imposed no dqty upon him to have the building in such a condition that persons could wander through it in the darkness away ''from the regular passageway without risk of falling. Nor was it his duty to maintain artificial lights for those who should choose to attempt to go through after nightfall.

The burden was upon the plaintiff to show that the accident happened through the negligence of the defendant. The defendant was under no obligation to provide against the ordinary risks incident to the performance of the contract which the plaintiff’s intestate entered into, nor against any special risks incident to the peculiar manner in which he might perform it. If it can fairly be said, contemplating the probabilities from the situation of the parties when they made their contract, that there was any risk that Sinnott would remain at his work until it was so dark in the passageway that he could not see his hand before his face, and then attempt to go through there without a light, and meet with an accident, that must be deemed to have been an ordinary risk of the business which he contracted to do, or a risk growing out of the peculiar manner in which he chose to do it. We do not think there was any evidence of negligence on the part of the defendant.

The testimony introduced in relation to the custom and usage of builders in reference to openings in the floors of buildings while in the process of construction, taken in connection with the testimony of the plaintiff’s intestate as to his experience as a carpenter, tended to show what he had reason to expect, and what dangers he was called upon to guard against, and so was competent upon the question whether he was in the exercise of due care. Whether or not' it was admissible for any other purpose, in the form in which it was presented, it is unnecessary to decide. Exceptions overruled.